Williams v The Queen - [2016] NZCA 36

IN THE COURT OF APPEAL OF NEW ZEALAND

CA181/2015
[2016] NZCA 36

BETWEEN	DAVID PEAR'N WILLIAMS Appellant
AND	THE QUEEN Respondent

Hearing:	10 February 2016
Court:	French, Simon France and Ellis JJ
Counsel:	E A Hall for Appellant D J Boldt for Respondent
Judgment:	1 March 2016 at 2.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by French J)

Introduction

Mr Williams was convicted at trial in the Wellington District Court of nine drug-related offences:
(a)three offences of offering to supply gamma-butyrolactone (GBL), a Class B drug;
(b)three offences of offering to supply methamphetamine, a Class A drug;
(c)one offence of supplying methamphetamine;
(d)one offence of possession of precursor substances with intent to manufacture methamphetamine; and
(e)one offence of possession of equipment and materials capable of use in the manufacture of methamphetamine with the intention they be so used.
The trial Judge, Judge Ronayne, sentenced Mr Williams to a term of imprisonment of three years and nine months.[1]
[1]R v Williams [2015] NZDC 3088. That term was comprised of the following sentences to be served concurrently: two years and six months for each charge of offering to supply methamphetamine, two years and six months for the charge of supplying methamphetamine, two years for each charge of offering to supply GBL, and one year and three months for the charge of possession of precursor substances. A sentence of one year and three months’ imprisonment for the charge of possession of equipment and materials was made cumulative on the other sentences.
Mr Williams filed an appeal against conviction and sentence. The appeal against conviction was subsequently abandoned. The appeal was filed out of time, but the Crown did not oppose an extension, which is accordingly granted.

Grounds of appeal

On behalf of Mr Williams, Ms Hall submitted the sentence was manifestly excessive for two reasons — first, because the Judge wrongly found there to be a commercial element to the offending, resulting in a starting point that was too high; and, second, because a greater discount should have been given for Mr Williams’ efforts at rehabilitation.[2]

Was there a commercial element to the dealing?

[2]Counsel agreed that in considering the appeal grounds we should not take into account a sentence imposed on Mr Williams a month later by Judge Davidson in the Wellington District Court for unrelated offending: R v Williams [2015] NZDC 4706.

Judge Ronayne found the offending, which had occurred over a six-month period, was commercial, “albeit at a moderately low level”.[3] He adopted a provisional starting point of two and a half years’ imprisonment for “the offers and supply of both” the GBL and methamphetamine. He considered the possession offences discretely attracted a starting point of two and a half years, but discounted this by 50 per cent for totality. This resulted in a starting point of three years and nine months’ imprisonment.
[3]R v Williams

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Williams v The Queen

Details

AGLC: Williams v The Queen [2016] NZCA 36
Case: [2016] NZCA 36
Decision Date: 1 March 2016 at 2.00 pm

CaseChat Overview and Summary

This case involves an appeal against sentence by David Pear'N Williams against the Crown. Williams was convicted of multiple drug-related offences, including offering to supply gamma-butyrolactone (GBL) and methamphetamine, supplying methamphetamine, and possession of precursor substances and equipment with intent to manufacture methamphetamine. The trial Judge sentenced Williams to a term of imprisonment of three years and nine months. Williams appealed the sentence, arguing that it was manifestly excessive due to the trial Judge's incorrect finding of a commercial element to the offending and the inadequate discount given for his efforts at rehabilitation.

The Court of Appeal had to determine whether there was a commercial element to the offending and whether a greater discount should have been given for Williams' efforts at rehabilitation. The Court found that there was ample evidence to support the trial Judge's finding of commerciality, including text messages, tick lists, numerous snap lock bags, and scales. The Court also found that the trial Judge's starting point was unexceptional and well within range. Regarding the discount for rehabilitative efforts, the Court found that the difference in the reported period of drug abstinence (eight months versus 18 months) did not warrant a significantly greater discount.

The Court of Appeal granted the application for an extension of time to appeal and dismissed the appeal against sentence. The Court found that the trial Judge's starting point was appropriate and that the discount for rehabilitative efforts was not inadequate. The sentence imposed by the trial Judge was affirmed.

Orders